sexual harassment, sexual harassment at work, hr lawyer

Sexual Harassment in the Workplace

Workplace harassment can take different forms, such as bullying, discrimination, and behavior that creates a hostile and unsafe work environment. Workplace harassment can include offensive jokes, slurs, name-calling, mockery, insults, physical assaults or threats, and interference with work performance, amongst other things.

While the most basic forms of harassment are psychological and verbal, there are more serious forms, such as physical and sexual. In particular, sexual harassment can wreak havoc on its victims and cause deleterious mental and physical health problems.

In the workplace, employees may face sexual harassment from their superiors, colleagues, or even customers. The article below discusses what kind of behaviour constitutes sexual harassment, your available remedies, and what you should do if you experience this type of harassment in the workplace. You will also learn how an employment and Human Rights lawyer can help.

 

What is Workplace Sexual Harassment?

Sexual harassment occurs across all employment contexts. However, it is more common in certain professions, such as:

  • Male-dominated industries;
  • Service and retail industries;
  • Isolated work environments, including homecare and live-in care giving workplaces; and
  • Corporate and office workplaces.

Generally, women and minorities are more vulnerable to experiencing workplace sexual harassment. As a result of increasing awareness about the frequency of workplace sexual harassment, lawmakers have been compelled to act and address sexual and other forms of harassment legislatively.

Ontario’s provincial Human Rights Code (the “Code”) and the federal Canadian Human Rights Act (the “Act”) protect employees from sexual harassment  by a colleague or employer.

Sexual harassment generally occurs when someone engages in a course of vexatious comment or comment that they know or should know is unwelcome about a person’s sex or gender/sexual identity.

 

Examples of sexual harassment include:
  • Demanding sex or sexual favors in exchange for a benefit;
  • Using derogatory language related to someone’s sex or gender identity;
  • Engaging in unsolicited touching, regardless of “good intentions”, including hugs, massages, or grabbing someone’s shoulder;
  • Posting, displaying, or sharing sexual content;
  • Bragging about one’s sexual prowess;
  • Making lewd and inappropriate jokes; and
  • Making sexual comments based on someone’s appearance or physical attributes.

Although people usually only complain about sexual harassment after multiple occurrences, a single incident itself may constitute workplace sexual harassment. Both men and women may experience this type of harassment at work, regardless of their position, experience, and industry.

Most people mistakenly assume that this type of harassment at work requires some overt act, such as sexual conduct or a comment directed at a particular individual. However, even “playful” or “friendly” actions such as demanding hugs or unnecessarily brushing against someone may qualify as sexual harassment under the Code or the Act.

Workplace sexual harassment does not need to be at the workplace or done directly to someone to be considered a violation under the Code or the Act. In some instances, indirect actions or comments made outside work hours may constitute sexual harassment as well. For example, someone spreading rumours about another worker’s sexual orientation during off-duty hours may be sexual harassment.

 

What Are the Remedies for Sexual Harassment at Work?

Victims of sexual harassment have access to a variety of remedies, depending on their unique circumstances. The most common are suing an employer in civil court or through the Ontario Human Rights Tribunal (the “Tribunal”). Federally regulated employees can bring a Human Rights claim through the Canadian Human Rights Commission (the “CHRC”).

Under the Code, the Act and the Ontario Occupational Health and Safety Act (“OHSA”), employers must protect workers from sexual harassment. To meet their legal obligations, employers should develop an anti-sexual harassment policy and investigate all complaints of workplace harassment.

Where an employer fails to properly investigate and address sexual harassment in the workplace, it can result in creating a toxic work environment for the employee. In such a case, an employee can argue they were constructively dismissed from their workplace, and seek severance pay through a civil lawsuit.

In cases of sexual harassment, there could be additional damages to sue for alongside severance, including but not limited to:

  • Assault and Battery;
  • Intentional Infliction of Mental Distress;
  • Intrusion Upon Seclusion;
  • Negligence;
  • Aggravated and Punitive Damages; and
  • General Damages for Human Rights violations.

An employee who experiences sexual harassment in the workplace can also commence a Human Rights Application through the Tribunal or the CHRC. Typically, the Tribunal or CHRC could award an employee:

  • Monetary compensation and restitution for their losses due to discrimination and harassment, such as lost wages and expenses incurred from loss of benefits;
  • General damages for injury to dignity, feelings, and self-respect due to discrimination and harassment; and
  • Non-monetary damages, such as requiring the employer to implement an anti-sexual harassment policy or requiring human rights training for the management and staff.

While each process can have its pros and cons in general, the best way to seek remedy for sexual harassment in the workplace will depend on everyone’s unique circumstances.

 

What to Do If You Experience Sexual Harassment at Work

This can be humiliating, embarrassing, and traumatic. The first step you should always take if you are experiencing sexual harassment at work is to ensure you are safe. In some cases, this may require seeking immediate medical attention or calling the Police.

Your next steps as a victim of sexual harassment at work will depend on your unique circumstances. The best way to determine those next steps is to gather any relevant documents and seek a consultation with an employment and Human Rights lawyer promptly.

In many cases, it is important to promptly file an internal written complaint with your employer about the harassment in the workplace you suffered. Employers usually must be given the opportunity to investigate and take corrective action.

You should document everything that happens from that point onward. Keeping copies of emails and taking notes at investigative meetings is one way to do that. Another is to keep a private journal about what has happened to you since making the complaint. Your employer would violate the Code and possibly the OHSA if they retaliate against you in some way after you make a complaint about sexual harassment at work.

If your employer fails to properly investigate or address your harassment complaint, you can then send your employer a demand letter through a lawyer. The demand letter should outline the material facts, your legal position, and your desired outcome.

Where negotiations are ineffective, it may be time to commence a legal proceeding. At this stage, it is more important than ever to consult with an employment and Human Rights lawyer.

 

How an Employment and Human Rights Lawyer Can Help

An employment and Human Rights lawyer is a trained negotiator and legal professional who can help resolve your case either through settlement or a legal process.

Making mistakes in a pleading, missing important deadlines, or filing your claim in the wrong jurisdiction could result in delay or dismissal of your claim. For example, the Tribunal or CHRC may dismiss a Human Rights Application filed later than 1 year from the alleged violation of the Code or the Act. The limitation period to bring a civil claim flowing from sexual harassment at work is 2 years from the date of the events.

Whether you want to negotiate with your employer to resolve your case or navigate the relevant legal process, an employment and Human Rights lawyer’s expertise will help you make the best case possible to achieve the results you want.

 

Conclusion

Sexual harassment at work can have a devastating impact on employees and the work environment. It can take many forms and does not necessarily need to happen in the physical work location to constitute sexual harassment at work.

Employers have legal obligations to address and investigate sexual harassment at work. An employer’s failure to properly investigate and address your complaints regarding harassment at work is something you can seek compensation and other remedies for in civil court, at the Tribunal, or at the CHRC.

While every case is unique, you should generally make sure you are safe before taking any further steps. You should then complain to your employer in writing about the sexual harassment you experienced in the workplace, and document as much that happens afterward as possible.

Consulting and hiring an employment and Human Rights lawyer can help you determine your best next steps if your employer does not properly address your complaint, negotiate a settlement for your case, and maximize your chances of success in your legal battle against your employer.

 

Contact Us

If you are an employee or an employer who requires legal advice and assistance regarding sexual harassment at work, our team of experienced legal professionals can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

 

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions. If you are looking for legal support for HR, visit our HR Legal Support page.

 

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